Dr.Vidyaa Hari Iyer vs M/S.Sundaram Finance Limited

THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on Delivered on 03~12~2020 11~12~2020

CORAM:

THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

A.No.2468 of 2020 in O.P.No.953 of 2018

Dr.Vidyaa Hari Iyer ... Applicant

.Vs.

1. M/s.Sundaram Finance Limited, Incorporated under the Indian Companies Act, 1913 and having its registered office at No.21 Pattullos Road, Chennai – 600 002.

2. Mr.Nishanth Ramesh ... Respondents

Prayer: Application filed under Order XIV Rule 8 of O.S. Rules read with Section 151 of CPC for direction directing the first respondent to disburse to the credit of the applicant herein the monies lying in FDR No.D629907 (L936473) together with interest at 18% p.a. from the date of maturity, within a time frame as fixed by this Court. For Applicant : Mr.Mohan for M/s.Vijayalakshmi Rajarathnam

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For respondents : Mr.Suresh – R1

Mr.Arvindh Pandian (SC) for Mr.Karthikeyan Anbazhagan - R2

ORDER

This application has been filed by the applicant to direct the first respondent

to disburse to the credit of the applicant herein the monies lying in FDR

No.D629907 (L936473) together with interest at 18% p.a. from the date of

maturity, within a time frame as fixed by this Court.

2. The contention of the applicant is that after the death of her husband, the

first respondent failed to release the deposit made by her husband on the ground

that the second respondent was the nominee. The applicant has filed an Original

Petition in O.P.No.953 of 2018 for issuance of Succession Certificate. The Court

by an Order dated 26.12.2019 issued the Succession Certificate. Despite the

certificate produced, the first respondent did not release the amount. It is further

alleged by the applicant in the application that her husband had made various

fixed deposits. After the death of her husband, she was driven out of her

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matrimonial home. Her in-laws and other nephews and nieces tried to usurp the

entire amount. Hence, this application has been filed to seeking direction to

release the deposit amount held by her husband.

3. It is the contention of the first respondent that the second respondent is

the nominee, has objected for release of the amount. They have filed an

interpleader suit before the City Civil Court for decision.

4. Whereas the second respondent would contend that the succession

certificate has been obtained without making him as a party. There are 8 writ

petitions pending in respect of other deposits made by the husband of the

applicant, wherein the other relatives have been appointed as nominees. When the

writ petitions are already pending, the succession certificate has been obtained.

Therefore, the same is not binding on them. It is his further contention that the

conduct of the applicant's husband making all other relatives as nominees clearly

proves that he has made gift of the money deposited in the bank to each of his

nephews and nieces. Hence, it is his contention that when the suit filed by the first

respondent is pending, direction cannot be ordered in this application. Only the

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nominee is entitled to receive the money. The right of the applicant has to be

decided only in the suit. Hence, prayed for dismissal of this application.

5. The learned counsel Mr.Mohan, appearing for the applicant submitted

that despite the certificate granted in favour of the applicant, who is the only legal

heir of her husband late Hari, the first respondent has not paid the amount on the

ground that the second respondent is the nominee. It is his contention that once

succession certificate is granted under Chapter X of the Indian Succession Act, the

first respondent has to necessarily pay the deposit amount to the applicant. Hence,

submitted that merely because some writ petitions are pending in respect of other

deposits, the same cannot be a ground to non suit the applicant. It is his further

contention that taking advantage of the fact that the applicant is a widow, the

family members in the matrimonial home tried to grab the money left by her

husband. In fact a suit has also been filed claiming huge damages preventing her

from seeking any redressal. This Court has heavily come down on the plaintiff in

the above suit and dismissed the above suit. All these facts clearly indicate that

only for the purpose of defeating the rights of the applicant, all the measures have

been taken and interpleader suit has also been filed by the first respondent with the

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connivance and collusion with the second respondent. Hence, submitted that she

being the class-I legal heir, she is entitled for release of the amount. In the event

of the second respondent succeeding in the interpleader suit, the applicant offers

her share declared in C.S.No.899 of 2017 as security towards the amount and there

can be charge over her share in the above immovable property. Hence, submitted

that the applicant is entitled to a direction to the first respondent to release the

amount. In support of his contentions, he relied on the following judgments :

Sarbati Devi and another Vs. Usha Devi reported in 1984

(1) SCC 424

Vishin N. Khanchandani Vs. Vidya Lachamandas

Khanchandani reported in 2000 (6) SCC 724

Ram Chander Talwar Vs. Devender Kumar Talwar

reported in 2010 (10) SCC 671

Skahti Yezdan Vs. Jayanand Jayant Salgaonkar reported

in 2016 SCC OnLine Bom 9834

P.Panchali Vs. Tamilnadu Generation and Distribution

Corporation Ltd. reported in 2017 SCC OnLine Mad 9191

Surendra Ranganth (Dr.) Vs. State Bank of India reported

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in 2017 SCC ONLine Mad 27190

Oswal Greetech Ltd. Vs. Pankaj Oswal and others

reported in 2019 SCC OnLine NCLAT 526

Shashikala A.Kisan Awad Vs. Divisional office, Central

Review, Mumbai reported in 2005 SCC OnLine Bom 885

M.Subramanian Vs. The Branch Manager, Canara Bank,

Adambakkam, Chennai – 600 008 in W.P.No.31608 of 2015

Order passed by this Court in A.No.98 of 2019 in

C.S.No.870 of 2017 reported in 2019 (5) CTC 755

6. Whereas Mr.Arvind Pandian, learned Senior Counsel appearing for the

second respondent vehemently contended that the succession certificate has been

obtained without making the second respondent as a party and admittedly there are

8 writ petitions pending as against the other relatives and the petition for

succession certificate has been filed without making the second respondent as a

party. Therefore, in this application, the direction cannot be granted. It is his

further contention that the conduct of the husband of the applicant making various

relatives as nominees in a number of fixed deposits clearly show that in fact he has

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gifted the money to all the relatives. It is his contention that under section 191 of

the Indian Succession Act, a man may dispose, by gift made in contemplation of

death, of any movable property. Hence, he has submitted that once a dispute is

raised as to the right over the money by way of gift, unless the same is decided in

the suit, the money cannot be paid to the applicant herein. Further, under section

145ZA of the Banking Regulations Act, only the nominee is entitled to receive the

deposited amount. At the most the legal heirs have to establish their right in a

civil suit. In respect of his submissions, he has relied upon the following

judgments :

Vishin N. Khanchandani and another Vs. Vidya

Lachmandas Khanchandani and another reported in 2000 (6)

Supreme Court Cases 724

M.Vellaichamy Vs. The District Manager, Virudhunagar

District, Centra Co-operative Bank and others in W.A. (MD)

No.256 of 2013

S.Sampath Vs. The Regional Manager, State Bank of

India and others in W.P.No.26992 of 2017

C.Shanthamma and others Vs. Indian Bank represented

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by its Managing Director and Chief Executive Officer and

others in W.P.No.27411of 2016

Ramesh Kumar Singh Vs. Zonal Manager, Allahabad

Bank reported in 2010 (85) AIC 916

K.Gangadar Reddy and another Vs. Gooty Co-operative

Town Bank Limited rep. by its Secretary and others reported in

2014 (2) ALT 66

Dasari Pullamma Vs. Andhra Bank rep. by its Deputy

General Manager, Zonal Office, Kurnool, Kurnool District and

others reported in 2016 (4) ALT 794

Communist Party of India (Marxist) Vs. United Bank of

India and others reported in 2016 (4) WBLR 87

Gopal Ram Vs. BranchManager, Bank of India, Buzar

Branch, District – Buxar and other of Patna High Court in

Civil Writ Juridistion Case No.1909 of 2014

Rama Chakravarty Vs. Punjab National Bank and

others reported in 1991 (71) Comp case 397

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Employment Officer Vs. Sevarinathan reported in Indian

Law Reports 1985 Karnataka 318

Santhosh Sullere and another Vs. Saroj Sullere reported

in 2012 (3) M.P.L.J. 609

Vasantha Kumari and others Vs. Rani Shantha @

Philomena and others reported in 2015 AIR (Karnataka) 167

Chandrasekharan Nair Vs. Union of India reported in

2007 (1) KLT 1006

Dolly Edelwaize D.Silva Vs. Mrs.Maelakin and others

reported in 1943 AIR (Allahabad) 95

Gara Surppadu and others Vs. Pandranki Rami Naidu

and ohters reported in 1984 AIR (A.P.) 386

Lakshmiammal Vs. Boobalan and others reported in 95

L.W. 182

7. Heard both sides and perused entire materials available on record.

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8. It is not in dispute that the succession certificate has been granted by this

Court for releasing the amount lying as a deposit with the first respondent. The

succession certificate has been granted after effecting paper publication etc.

Several writ petitions being Nos.24061 of 2018 to 24066 of 2018, 14304 of 2020

14369 of 2020 have been filed by the applicant against various banks, namely

Axis Bank, Punjab National Bank, City Union Bank, Indian Overseas Bank,

Tamilnadu Power Finance and Infrastructure Development Corporation Limited,

Canara Bank and Indian Overseas Bank respectively and also against the other

relatives, namely other nominees, nephews and nieces of the applicant's husband.

The allegations and counter allegations in the above writ petitions clearly indicate

that the contesting respondents in the above writ petitions were made nominees by

her husband. The counter has been filed only on 14.10.2020 by the respondents in

the above writ petitions, much after the succession certificate has been granted by

this Court. In the counter affidavit, it is stated that they have been nominated by

the husband of the applicant with an intention to give money to the nominees

therein by way of gift and monies were given to them. Such stand has been taken

in the counter filed on 14.10.2020. It is also relevant to note that a suit in

C.S.No.870 of 2017 on the file of this Court was filed for damages as against the

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applicant herein by Metallic Bellows India Pvt. Ltd. [reported in 2019 (5) CTC

755]. While rejecting the above suit, this Court in para 48 has observed that the

very suit has been filed to scuttle the defendant/applicant herein from seeking

remedy under law to indicate her rights and prevent them from speaking up to

their rights or approaching the authorities seeking redressal. The finding recorded

by the learned Single Judge of this Court indicate that the entire family members

joined in one hand to defeat the legal right of the defendant therein.

9. Be that as it may. Now the crux of the matter is that whether the

direction can be issued to the first respondent to pay the fixed deposit amount

lying with them. It is to be noted that the second respondent was appointed as a

nominee in the said fixed deposit. It is well settled position of law that the

nominee is only a trustee. In the judgment in Sarbati Devi and another Vs. Usha

Devi reported in 1984 (1) SCC 424, the Apex Court has held that mere

nomination made under section 39 of the Life Insurance Act does not have the

effect of conferring on the nominee any beneficial interest in the amount payable

under the life insurance policy on the death of the assured. The nominee cannot be

considered as equivalent to an heir or legatee. In Ram Chander Talwar and

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another Vs. Devender Kumar Talwar and others reported in 2010 (10)

Supreme Court Cases 671, it has been held that nomination merely gives right of

the depositor to receive money lying in the account. But it does not make nominee

owner of money lying in the account. The Division Bench of Bombay High Court

in Ahakti Yezdani Vs. Jeyanand Jayant Salgonkar reported in 2016 SCC

Online Bom 9834 has held that nomination does not over ride law in relation to

testamentary or intestate succession and provisions regarding nomination are made

with a view to ensure that estate or rights of deceased subject matter are protected

till legal representatives of deceased take appropriate steps.

10. In the judgment in Shashikala A Kisan Awad Vs. Divisional Office,

Central Railway, Mumbai reported in 2005 SCC Online Bom 885, the learned

Single Judge of Bombay High Court has held that once a succession certificate is

issued by a testamentary Court, the Union of India is bound to accept the same and

on non acceptance of the same, the testamentary Court, who has issued the

succession certificate is entitled to issue a direction to accept such a succession

certificate and the consequence must follow accordingly. In the above case,

despite the succession certificate granted by the Bombay High Court, the railway

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authority has not released the amount. Hence, the Court has directed to release of

the amount. In Vishin N. Khanchandani and another Vs. Vidya Lachmandas

Khanchandani and another reported in 2000 (6) Supreme Court Cases 724, the

Apex Court has held as follows :

“The submission made on behalf of the appellants has no

substance in view of sub-section (2) of Section 8 and the Statement

of Objects and Reasons necessitating the passing of the Act. Sub-

section (1) of Section 8 provides that if any payment is made in

accordance with the provisions of the Act to a nominee, the same

shall be a full discharge from all further liabilities in respect of the

sum so paid. Section 7 of the Act provides that after the death of the

holder of the savings certificates payment of the sum shall be made

to the nominee, if any, and sub-section (1) of Section 8 declares that

such payment shall be a full discharge from all further liabilities in

respect of the sum so paid. However, sub-section (2) of Section

8 specifies that the payment made to the nominee under sub-section

(1) shall not preclude any executor or administrator or the legal

representative of the deceased holder of a savings certificate from

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recovering from the person receiving the same under Section 7; the

amount remaining in nominee's hand after deducting the amount of

all debts or other demands lawfully paid or discharged by him in due

course of administration. In other words though the nominee of the

national savings certificates has a right to be paid the sum due on

such savings certificates after the death of the holder, yet he retains

the said amount for the benefit of the persons who are entitled to it

under the law of succession applicable in the case, however, subject

to the exception of deductions mentioned in the sub-section.”

11. In the judgment of the Division Bench of this Court in

Mr.Vellaichamy Vs. the District Manager, Virudhunagar District Central Co-

operative Bank and others in W.A. (MD) No.256 of 2013, relied on by the

second respondent, it has been held that a nominee is a custodian and the money

that may be received by the nominee should be kept for the interest of others, who

are otherwise legally entitled to and the nominee cannot claim ownership in the

money lying in the account. The Single Judge of this Court in S.Sampath Vs. the

Regional Manager, State Bank of India in W.P.No.26992 of 2017 has held that

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When there is nomination as per section 45ZA of Banking Regulation Act 1949,

the bank has to release the amount to the nominee and allowed the writ petition. Similar view has been taken by the Telangana and Andhra Pradesh High Court in

Dasari Pullamma Vs. Andhra Bank, rep. by its Deputy General Manager,

Zonal Office, Kurnool, Kurnool District and two others reported in 2017 (1)

BankJ 284 and by the Calcutta High Court in Communist Party of India

(Marxist) Vs. United Bank of India and others reported in 2016 (4) WBLR 87.

12. In the judgment in Rama Chakravarty Vs. Punjab National Bank

and others reported in 1991 (1) Cal. L.T. 324, the Calcutta High Court directed

the bank to release the amount on the basis of the deposit. These cases will not

help the respondent in any manner. Since in the above cases, the bank insisted for

succession certificate in favour of the nominee, in such situation, the Court held

that as long there is nomination, the bank is bound to release the amount to the

nominee under section 45ZA of the Banking Regulation Act. The respondent

also placed reliance on judgment of the Karnataka High Court in Employment

Officer Vs. Sevarinathan reported in Indian Law Reports 1985 318, wherein

the succession certificate is sought to be enforced under Order 21 C.P.C and the

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Karnataka High Court has held that succession certificate cannot be enforced since

it is not a decree or Order within the meaning of the Civil Procedure Code. In the

judgment of the Division Bench of Kerala High Court relied upon by the second

respondent in Chandrasekharan Nair Vs. Union of India reported in 2007 (1)

KHC 738, it has been held that the gift in contemplation of death made towards

Chief Minister's Relief Fund is valid under section 191 of the Banking Regulation

Act. There cannot be dispute at all with regard to the above aspect. Merely

making such submissions at a later point of time without any proof. Such

contention of the alleged gift is improbable and unbelievable and the gift cannot

be presumed merely on the basis of some nomination.

13. Similarly the judgment of the Allahabad High Court in the judgment in

Gara Surppadu and others Vs. Pandranki Rami Naidu and others reported in

1984 AIR (A.P.) 386 also relied on by the second respondent to contend that gift

is permissible. Absolutely there is no dispute over the gift under section 191 of

the Indian Succession Act and the competence of the person to make a gift as per

the provision of law. The other judgment relied upon by the second respondent in

Lakshmiammal Vs. Boobalan and others reported in 1995 Law Weekly 182 to

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contend that a direction cannot be issued in the Original Petition to release the

fund. The facts of the above case is totally different wherein in the above case

after the release of the amount on the basis of the succession certificate after 11

years, a petition was filed invoking inherent powers of the Court by the third

parties and strangers for a direction to invoke the succession certificate granted by

this Court and to redeposit the amount. In such a situation, this Court had held

that no direction can be granted. The facts of the above judgment is not applicable

to the facts of the present case.

14. During the submissions, when this Court posed a question when the

alleged oral gift has been made, the learned counsel appearing for the second

respondent is unable to give any details. Though such stand had been taken in the

counter filed at a later point of time on 04.10.2020, on perusal of records,

particularly, the letter correspondences between the parties, namely the second

respondent and the first respondent Sundaram Finance, in the letter dated

20.08.2017 issued by the second respondent to the Sundaram Finance, he never

whispered anything about the gift made by late Hari. The above letter also

indicate that the original fixed deposit receipt is with the legal heir Mrs.Vidyaa

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Hari and therefore, he is unable to close the deposit. If really the gift as contended

by the second respondent is valid and true, the original deposit must be in the

hands of the second respondent to believe the same. What is required to constitute

a valid gift of a immovable property is delivery. Even under section 191, the gift

is said to be made in contemplation of death, of any movable property which he

could dispose of by Will. If really, late Hari in contemplation of death made the

gift of cash, there was no necessity to deposit the money in his name, restricting

the right of the second respondent as only a nominee. Therefore, the alleged gift

pleaded at a later point of time, that too after the succession certificate was

obtained is highly improbable. Such a conclusion is further fortified by very

conduct of the second respondent. After this Court had granted succession

certificate on 26.02.2019, even in the letter dated 19.03.2019, the second

respondent has reiterated the fact that the original deposit receipt is not with him.

15. After a copy of the succession certificate is sent to the first respondent,

the Sundaram Finance has addressed a letter to the applicant herein admitting the

legal position and requested her to furnish certain documents to pay the entire

amount. Similarly, they have also addressed a letter to the second respondent

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indicating the legal position of nominees versus successor to the estate of the

deceased and categorically said that the right of a legal heir cannot be usurped by

the nominee, since the nomination can neither displace the laws of succession nor

substitute a Will and relying on the judgment of the Division Bench of the

Bombay High Court, the Sundaram Finance has categorically stated in the letter

addressed to the second respondent that nominee does not obtain any absolute title

to the property. Thereafter, though a reply was sent by the second respondent on

15.05.2019, in the above letter the contention raised by the second respondent was

to the effect that the succession certificate was obtained without impleading him

and further he has reiterated his right to receive the fixed deposit only as per the

Section 45ZA of the Banking Regulation Act and again requested the first

respondent to release the amount to him as a nominee. This letter is more relevant

to appreciate the contention of the parties. In the above letter sent on 15.05.2019,

there is no whisper as to the oral gift of the so called money as pleaded

subsequently in the counter dated 04.10.2020 in the writ petitions. If really there

was a oral gift or gift as per Section 191 of the Indian Succession Act what should

have been conduct of the parties. At the very inception itself he should have

informed the same to the bank or to the first respondent at the earliest point of

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time.

16. In none of the correspondences, the second respondent ever whispered

anything about the so called gift as per Section 191 of the India Succession Act.

Therefore, the theory of the alleged gift appears to the nothing but after thought

and introduced at later point of time. The conduct of the first respondent

Sundaram Finance having fully agreed the legal position and informing the same

to the second respondent, that too after the succession certificate has been

obtained by the legal heir and again going for interpleader suit is highly

deprecated. It is to be noted that as per Part X of the Indian Succession Act once

succession certificate has been granted, such certificate is conclusive as against the

persons owing such debts. Section 381of the Indian Succession Act reads as

follows :

“Section 381. Effect of certificate – Subject to the provision

of this Part, the certificate of the District Judge shall, with respect to

the debts and securities specified therein, be conclusive as against

the persons owing such debts or liable on such securities, and shall,

notwithstanding any contravention of section 370, or other defect,

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afford full indemnity to all such persons as regards all payments

made, or dealings had, in good faith in respect of such debts or

securities to or with the person to whom the certificate was

granted.”

The above section makes it very clear that the succession certificate is conclusive

as against the persons owing such debts and it makes it clear that there will be

indemnity to all such persons with regard to the payments on the basis of the

succession certificate.

17. As far as Section 45ZA of the Banking Regulation Act is concerned, the

above section indicate that the amount shall be paid to the nominee. It is also to

be noted that Section 45ZD makes it clear that when there is an Order or a

certificate or other authority from a Court obtained relating to such article is

produced before the bank, the bank shall take due note of such decree, Order,

certificate or other authority. Therefore, it cannot be said that even after the

succession certificate is granted by the competent Court is produced before the

bank, they cannot ignore the same merely on the basis of Section 45ZA of the

Banking Regulations Act. Even though 45ZA contained non obstante clause, the

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Apex Court in Vishin N. Khanchandani Vs. Vidya Lachamandas

Khanchandani reported in 2000 (6) SCC 724 in para 11 has categorically held

that though the over riding effect of non obstante clause to attract the applicability

of the phrase, the whole of the section, the scheme of the Act and the objects and

reasons for which such an enactment is made have to kept in mind, as the nominee

has to be treated as a trustee and he is entitled to receive the amount only and he

has to pay the amount to the persons who are entitled under law of succession.

Therefore, when the succession certificate already granted, the object of the Indian

Succession Act has to be given importance. Accordingly, the contention that only

the nominee alone as per section 45ZA of the Banking Regulations Act is entitled

to receive the money even after succession certificate is granted, cannot be

countenanced. Therefore, merely because a suit has been filed at a later point of

time at the instance of the nominee, despite the succession certificate has been

produced, the same has no relevance to decide this application. If at all the second

respondent in the event of succeeding in the suit in O.S.No.5683 of 2019, to

realise the amount, this Court is of the view that some security has to be offered by

the applicant herein. The learned counsel for the applicant Mr.Mohan submitted

that in C.S.No.899 of 2017 already 1/4th share of the applicant has been declared

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and preliminary decree is already passed and charge may be created in respect of

the above 1/4th share of the applicant towards the deposit amount till the

interpleader suit is decided.

18. Accordingly, the first respondent is directed to release the amount to the

applicant within a period of one week from the date of receipt of a copy of this

Order. There shall be a charge over the 1/4th share of the applicant declared in

C.S.No.899 of 2017 towards the deposit amount till the interpleader suit in

O.S.No.5653 of 2019 on the file of the XVI Additional City Civil Court is

decided.

11.12.2020

vrc

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N. SATHISH KUMAR, J.

vrc

Order in:

A.No.2468 of 2020 in O.P.No.953 of 2018

11.12.2020

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